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15
PART ONE
C H A P T E R
INTRODUCTION
T
Managing Equal Opportunity
and
Diversity
T w o
2
Lecture Outline
Strategic Overview
Selected Equal Employment Opportunity Laws
Equal Pay Act of 1963
Title VII of the 1964 Civil Rights Act
Executive Orders
Age Discrimination in Employment Act of 1967
Vocational Rehabilitation Act of 1973
Pregnancy Discrimination Act of 1978
Federal Agency Uniform Guidelines
Selected Court Decisions
The Civil Rights Act of 1991
The Americans with Disabilities Act
Uniformed Services Employment and
Reemployment Rights Act
Genetic Information Non-Discrimination Act
Sexual Orientation
State and Local EEO Laws
Sexual Harassment
Defenses Against Discrimination Allegations
The Central Role of Adverse Impact
Bona Fide Occupational Qualification
Business Necessity
Illustrative Discriminatory Employment
Practices
A Note on What You Can and Cannot Do
Recruitment
Selection Standards
Sample Discriminatory Promotion, Transfer, and
Layoff Procedures
The EEOC Enforcement Process
Processing a Discrimination Charge
Voluntary Mediation
Mandatory Arbitration of Discrimination Claims
Diversity Management and Affirmative Action
Programs
Diversity’s Potential Pros and Cons
Managing Diversity
Affirmative Action and Reverse Discrimination
In Brief: This chapter gives a
history of equal opportunity
legislation,
outlines
defenses
against discrimination allegations,
gives examples of discriminatory
practices, describes the EEOC
enforcement process and suggests
proactive programs for managing
diversity and affirmative action
programs.
Interesting Issues: Affirmative
action programs have come under
fire in recent years, even by some
members of protected groups. A
very critical issue is whether
affirmative action represents “a leg
up” assistance for those who,
historically,
have
been
discriminated against, or if it
becomes a “crutch” that hinders
their motivation and ability to
compete and perform. Although
these are delicate and potentially
volatile issues, helping students
see and understand both sides of
the argument will help them
understand the depth of these
issues.
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ANNOTATED OUTLINE
I.
Selected Equal Opportunity Laws
A. Background
1. The Fifth Amendment (ratified in 1791) states, “no person shall
be deprived of life, liberty, or property, without due process of the
law.”
B. Equal Pay Act of 1963 (amended in 1972) made it unlawful to
discriminate in pay on the basis of sex when jobs involve equal work,
equivalent skills, effort, and responsibility, and are performed under
similar working conditions.
C. Title VII of the 1964 Civil Rights Act
1. Background
a. The act says it is unlawful to fail or refuse to hire or to
discharge an individual or otherwise to discriminate against
any individual with respect to his or her compensation,
terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.
b. The act says it is unlawful to limit, segregate, or classify his
or her employees or applicants for employment in any way
that would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his
or her status as an employee, because of such individual’s
race, color, religion, sex, or national origin.
2. Who does Title VII cover? It covers: a) all public or private
employers of 15 or more persons; b) all private and public
educational institutions; c) federal, state, and local governments;
d) public and private employment agencies; e) labor unions with
15 or more members; and f) joint labor-management
committees.
3. The EEOC (Equal Employment Opportunity Commission) was
established by Title VII. It consists of five members (serving fiveyear terms), appointed by the president with the advice and
consent of the Senate. The EEOC investigates job discrimination
complaints and may file charges in court.
D. Executive Orders by various presidents have expanded the effect of
equal employment laws in federal agencies. Johnson’s
administration (1963–1969) issued Executive Orders 11246 and
11375, which required contractors to take affirmative action (steps
taken for the purpose of eliminating the present effects of past
discrimination) to ensure equal employment opportunity.
E. Age Discrimination in Employment Act (ADEA) of 1967 made it
unlawful to discriminate against employees or applicants for
employment who are between 40 and 65 years of age.
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F. Vocational Rehabilitation Act of 1973 required employers with federal
contracts of more than $2500 to take affirmative action for the
employment of handicapped persons.
G. Pregnancy Discrimination Act (PDA) of 1978, an amendment to Title
VII of the Civil Rights Act, prohibits sex discrimination based on
“pregnancy, childbirth, or related medical conditions.”
H. Federal Agency Guidelines on Employee Selection Procedures are
uniform guidelines issued by federal agencies charged with ensuring
compliance with equal employment federal legislation explaining
“highly recommended” employer procedures regarding matters such
as employee selection, record keeping, preemployment inquiries,
and affirmative action programs.
I.
Selected Court Decisions Regarding Equal Employment Opportunity
(EEO)
1. Griggs v. Duke Power Company, a case heard by the Supreme
Court in which the plaintiff argued that his employer’s
requirement that coal handlers be high school graduates was
unfairly discriminatory. In finding for the plaintiff, the Court ruled
that discrimination need not be overt to be illegal, that
employment practices must be related to job performance, and
that the burden of proof is on the employer to show that hiring
standards are job related if it has an unequal impact on members
of a protected class.
2. Albemarle Paper Company v. Moody, a Supreme Court case in
which it was ruled that the validity of job tests must be
documented, and that employee performance standards must be
unambiguous.
J.
The Civil Rights Act (CRA) of 1991 places burden of proof back on
employers and permits compensatory and punitive damages.
1. Burden of Proof was shifted back to where it was prior to the
1980s with the passage of CRA 1991; thus, the burden is once
again on employers to show that the practice (such as a test) is
required as a business necessity. For example, if a rejected
applicant demonstrates that an employment practice has a
disparate (or “adverse”) impact on a particular group, the
employer has the burden of proving that the challenged practice
is job related for the position in question.
2. Money Damages—Section 102 of CRA 1991 provides that an
employee who is claiming intentional discrimination (disparate
treatment) can ask for 1) compensatory damages and 2) punitive
damages, if it can be shown the employer engaged in
discrimination “with malice or reckless indifference to the
federally protected rights of an aggrieved individual.”
3. Mixed Motives—CRA 1991 states: “An unlawful employment
practice is established when the complaining party demonstrates
that race, color, religion, sex, or national origin was a motivating
factor for any employment practice, even though other factors
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also motivated the practice.” Employers cannot avoid liability by
proving it would have taken the same action—such as
terminating someone—even without the discriminatory motive.
Plaintiffs in such so-called “mixed motive” cases recently gained
an advantage from a U.S. Supreme Court decision in Desert
Palace Inc. v. Costa, where the court decided that the plaintiff did
not have to provide evidence of explicitly discriminatory conduct,
but could provide circumstantial evidence.
K.
The Americans with Disabilities Act requires employers to make
reasonable accommodations for disabled employees, and it
prohibits discrimination against disabled persons.
1. Mental Impairments and the ADA — Mental disabilities account
for the greatest number of ADA claims. “Mental impairment”
includes “any mental or psychological disorder, such as . . .
emotional or mental illness.” Examples include major depression,
anxiety disorders, and personality disorders.
2. Qualified Individual — The act prohibits discrimination against
those who, with or without a reasonable accommodation, can
carry out the essential functions of the job.
3. Reasonable Accommodation — If the individual cannot perform
the job as currently structured, the employer is required to make
a “reasonable accommodation,” unless doing so would present
an “undue hardship.”
4. Traditional Employer Defenses — Employers used to prevail in
about 96% of federal appeals court ADA decisions. A U.S.
Supreme Court decision typifies why. An assembly worker sued
Toyota, arguing that carpal tunnel syndrome prevented her from
doing her job. The employee admitted that she could perform
personal chores such as fixing breakfast. The Court said the
disability must be central to the employee’s daily living (not just
job).
5. The “New” ADA — On January 1, 2009, the ADA Amendments
Act of 2008 became effective. This will make it much easier for
employees to show that their disability is influencing one of their
“major life activities.”
L. Uniformed Services Employment and Reemployment Rights Act —
Under the Uniformed Services Employment and Reemployment
Rights Act (1994), employers are generally required, among other
things, to reinstate employees returning from military leave to
positions comparable to those they had before leaving.
M. Genetic Information Non-Discrimination Act of 2008 — GINA
prohibits discrimination by health insurers and employers based on
people’s genetic information.
N. The Federal Employment Non-Discrimination Act — ENDA would
prohibit workplace discrimination based on sexual orientation and
gender identity if Congress passes it.
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O. State and Local Equal Employment Opportunity Laws — typically,
further restrict employers’ treatment of job applicants and
employees, especially those not covered by federal legislation. State
and local equal employment opportunities agencies play a role in the
equal employment compliance process.
P. State and Local Equal Employment Opportunity Laws — typically,
further restrict employers’ treatment of job applicants and
employees, especially those not covered by federal legislation. State
and local equal employment opportunities agencies play a role in the
equal employment compliance process.
Q. Sexual Harassment. This is harassment on the basis of sex that has
the purpose or effect of substantially interfering with a person’s work
performance or creating an intimidating, hostile, or offensive work
environment.
1. Submission is either explicitly or implicitly a term or condition of
an individual’s employment.
2. Submission to or rejection of such conduct is the basis for
employment decisions affecting such individual.
3. Such conduct has the purpose or effect of unreasonably
interfering with an individual’s work performance or creating an
intimidating, hostile, or offensive work environment.
R. Proving Sexual Harassment. There are three main ways to prove
sexual harassment.
1. Quid Pro Quo — The most direct way is to prove that rejecting a
supervisor’s advances adversely affected what the EEOC calls a
“tangible employment action.”
2. Hostile Environment Created by Supervisors — Supervisor
advancements can interfere with performance and creates an
offensive work environment. There is a difference between
simple flirting and sexual harassment.
3. Hostile Environment Created by Coworkers or Nonemployees —
An employee’s coworkers or customers can cause the employer
to be held responsible for sexual harassment.
S. Court Decisions — The Supreme Court used the Meritor Savings
Bank, FSB v. Vinson case to endorse the EEOC’s guidelines on
sexual harassment.
1. Burlington Industries v. Ellerth—quid pro quo harassment
2. Faragher v. City of Boca Raton—hostile work environment
T. Implications — The Court’s written decisions in the latter cases have
two implications for employers. First, in quid pro quo cases it is not
necessary for the employee to suffer a tangible job action (such as a
demotion) to win the case; the threat may be sufficient. Second, the
Court laid out an important defense against harassment suits. It said
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the employer must show that it took “reasonable care” to prevent and
promptly correct any sexually harassing behavior and that the
employee unreasonably failed to take advantage of the employer’s
policy. The most important factor is a permissive social climate, one
where employees conclude there’s a risk to victims for complaining,
that complaints won’t be taken seriously, or that there’s a lack of
sanctions against offenders.
U. When the Law Isn’t Enough — two practical considerations often
trump the legal requirements. First, “Women perceive a broader
range of socio-sexual behaviors (touching, for instance) as
harassing.” A second reason the usual precautions often aren’t
enough is that employees often won’t use them.
V. What the Employee Can Do — courts generally look to whether the
harassed employee used the employer’s reporting procedures to file
a complaint promptly.
1. Gender harassment is a form of hostile environment harassment
that appears to be motivated by hostility toward individuals who
violate gender ideals.
2. Employers should do two things: They should take steps to
ensure harassment does not take place. Second, once being
apprised of such a situation, they should take immediate
corrective action.
3. Employees can also take several steps to address the problem
of sexual harassment.
II.
Defenses Against Discrimination Allegations
Discrimination law distinguishes between disparate treatment and
disparate impact. Disparate treatment means intentional discrimination. It
“requires no more than a finding that women (or protected minority group
members)” were intentionally treated differently because they were
members of a particular race, religion, gender, or ethnic group.
A. The Central Role of Adverse Impact — refers to the total
employment process that results in a significantly higher percentage
of a protected group in the candidate population being rejected for
employment, placement, or promotion. Employers may not institute
an employment practice that has an adverse impact on a particular
class of people unless they can show that the practice is job related
and necessary. There are several ways of showing that an
employment procedure has an adverse impact on a protected group.
B. Disparate Rejection Rates — One shows disparate rejection ratesby
comparing rejection rates for a minority group and another group
(usually the remaining nonminority applicants).
C. The Standard Deviation Rule — In selection, the standard deviation
rule holds that as a rule of thumb, the difference between the
numbers of minority candidates we would have expected to hire and
whom we actually hired should be less than two standard deviations.
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D. Restricted Policy — The restricted policy approach means
demonstrating that the employer’s policy intentionally or
unintentionally excluded members of a protected group.
E. Population Comparisons — This approach compares (1) the
percentage of minority/protected group and white workers in the
organization with (2) the percentage of the corresponding group in the
labor market.
F. The McDonnell-Douglas Test requires four rules be applied:




The person belongs to a protected class
He or she applied and was qualified for a job
Despite being qualified, he or she was rejected
After the rejection, the position remaince open and the employer
continued seeking applications from persons with the
complainant’s qualifications
G. Bona Fide Occupational Qualification (BFOQ) — is a defense used to
justify an employment practice that may have an adverse impact on
members of a protected class. It is a requirement that an employee be
of a certain religion, sex, or national origin where that is reasonably
necessary to the organization’s normal operation. This is ever more
narrowly interpreted by courts.
D. Business Necessity — is a defense created by the courts, which
requires an employer to show an overriding business purpose for the
discriminatory practice and that the practice is therefore acceptable.
III.
Illustrative Discriminatory Employment Practices
A note on what you can and cannot do—preemployment questions
are not inherently legal or illegal. Rather, the impact of the questions is
what courts assess in making determinations about discriminatory
practice. “Problem questions” are those which screen out members of a
protected group. The EEOC approves the use of “testers” posing as
applicants to test a firm’s procedures. Care should be taken in devising
employment practices and in training recruiters.
A. Recruitment — If the workforce is not truly diverse, relying on word of
mouth to spread information about job openings can reduce the
likelihood of all protected groups having equal access to job
openings. It is unlawful to give false or misleading job information.
Help-wanted ads should be screened for potential age and gender
bias.
B. Selection Standards — Educational requirements and tests that are
not job related, or which result in adverse impact can be found to be
illegal. Showing preference to relatives may also contribute to a lack
of racial diversity; height, weight, and physical characteristics should
be job related. Felony conviction information can be sought, but
arrest records negate the presumption of “innocent until proven
guilty” and may result in adverse impact against groups with a high
incidence of arrests. Application forms should not contain questions
which may allow potentially discriminatory information to be
gathered. Discharge due to garnishment may result in adverse
impact to minority groups.
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C. Sample Discriminatory Promotion, Transfer, and Layoff Practices—
Fair employment laws protect not just job applicants but also current
employees. Employees have filed suits against employers’ dress,
hair, uniform, and appearance codes under Title VII, claiming sex
discrimination and sometimes racial discrimination. In some cases,
the courts have agreed
IV.
The EEOC Enforcement Process
A. Processing a Discrimination Charge—All managers should have a
working knowledge of the steps in the EEOC claim process.
1. File Claim — Under CRA 1991, the charge generally must be
timely filed in writing and under oath by (or on behalf of) the
person claiming to be aggrieved, or by a member of the EEOC
who has reasonable cause to believe that a violation occurred.
2. EEOC Investigation — The EEOC can either accept the charge
or refer it to the state or local agency. Serve notice—After the
charge has been filed, the EEOC has 10 days to serve notice on
the employer.
B. Voluntary Mediation — A neutral third party may aid the parties in
reaching voluntary resolution. The EEOC will ask the employer to
participate if the claimant agrees to mediation. Employer options
include mediating the charge, making a settlement offer, or preparing
a position statement for the EEOC.
C. Mandatory Arbitration of Discrimination Claims — Many employers,
to avoid EEO litigation, require applicants and employees to agree to
arbitrate such claims. The U.S. Supreme Court’s decisions (in Gilmer
v. Interstate/Johnson Lane Corp.and similar cases) make it clear that
“employment discrimination plaintiffs [employees] may be compelled
to arbitrate their claims under some circumstances.”
V.
Diversity Management and Affirmative Action Programs
A. Diversity’s Potential Pros and Cons — Behavioral barriers that
undermine work team collegiality and cooperation include,
stereotyping, prejudice, and discrimination. Tokenism, ethnocentrism
and discrimination based on gender-role stereotypes also may cause
problems within teams and for overall productivity. The key is
properly managing these potential threats. For example, one study
found that racial discrimination was related negatively to employee
commitment, but that organizational efforts to support diversity
reduced such negative effects.
B. Managing Diversity — means taking steps to maximize diversity’s
potential advantages while minimizing the potential barriers, such as
prejudices and bias that can undermine the functioning of a diverse
workforce. One diversity expert concluded that five sets of voluntary
organizational activities are at the heart of any diversity management
program: 1) provide strong leadership; 2) assess the situation; 3)
provide diversity training and education; 4) change culture and
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management systems; 5) evaluate the diversity management
program.
C. Equal Employment Opportunity Versus Affirmative Action — Equal
employment opportunity aims to ensure that anyone, regardless of
race, color, sex, religion, national origin, or age, has an equal chance
for a job based on his or her qualifications. Affirmative action goes
beyond equal employment opportunity by requiring the employer to
make an extra effort to recruit, hire, promote, and compensate those
in protected groups to eliminate the present effects of past
discrimination.
D. Affirmative Action and Reverse Discrimination — Affirmative action is
still a significant workplace issue today. The incidence of major
court-mandated programs is down. However, many employers still
engage in voluntary programs. It is vital that current employees see
the program as fair. This is accomplished through good
communication, program justification, and transparent selection
procedures.
Key Terms
Equal Pay Act of 1963
The act requiring equal pay for equal work, regardless of
sex.
Title VII of the 1964
Civil Rights Act
The section of the act that says an employer cannot
discriminate on the basis of race, religion, sex, or national
origin with respect to employment.
EEOC
The commission, created by Title VII, is empowered to
investigate job discrimination complaints and sue on behalf
of complainants.
OFCCP
This office is responsible for implementing the executive
orders and ensuring compliance of federal contractors.
Age Discrimination in
Employment Act of 1967
The act prohibiting arbitrary age discrimination
and specifically protecting individuals older than 40 years of
age.
Voc. Rehab. Act of 1973
The act requiring certain federal contractors to take
affirmative action for disabled persons.
Pregnancy Discrimination
Act (PDA)
An amendment to Title VII of the Civil Rights Act that
prohibits sex discrimination based on “pregnancy, childbirth,
or related medical conditions.”
Griggs v. Duke Power Co.
Supreme Court case in which the plaintiff argued that his
employer’s requirement that coal handlers be highschool
graduates was unfairly discriminatory. In finding for the
plaintiff, the Court ruled that discrimination need not be overt
to be illegal, that employment practices must be related to
job performance, and that the burden of proof is on the
employer to show that hiring standards are job related.
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Protected class
Persons such as minorities and women protected by equal
opportunity laws including Title VII.
Civil Rights Act of 1991
(CRA 1991)
This act places the burden of proof back on employers and
permits compensatory and punitive damages.
disparate impact
An unintentional disparity between the proportion of a
protected group applying for a position and the proportion
getting the job.
disparate treatment
An intentional disparity between the proportion of a protected
group and the proportion getting the job.
Americans with
Disabilities Act (ADA)
The act requiring employers to make reasonable
accommodation for disabled employees. It
discrimination against disabled persons.
sexual harassment
Harassment on the basis of sex that has the purpose or
effect of substantially interfering with a person’s work
performance or creating an intimidating, hostile, or offensive
work environment.
Adverse impact
The overall impact of employer practices that result in
significantly higher percentages of members of minorities
and other protected groups being rejected for employment,
placement, or promotion.
BFOQ
Bona Fide Occupational Qualification. Allows requirements
that an employee be of a certain religion, sex, or national
origin where that is reasonably necessary to the
organization’s normal operation. Specified by the 1964 Civil
Rights Act.
Business necessity
Justification for an otherwise discriminatory employment
practice, provided there is an overriding legitimate business
purpose.
Diversity
Means maximizing diversity’s potential benefits (greater
cultural awareness and broader language skills, for instance)
while minimizing the potential barriers (such as prejudices
and bias) that can undermine the company’s performance.
Discrimination
Means taking specific actions toward or against the person
based on the person’s group.
Gender-role stereotypes
The tendancy to associate women with certain frequently
nonmanagerial jobs.
Affirmative action
Steps that are taken for the purpose of eliminating the
present effects of past discrimination.
prohibits
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DISCUSSION QUESTIONS
1. Present a summary of what employers can and cannot do legally with respect to
recruitment, selection, and promotion and layoff practices.
Answers can vary but students should identify several of the following:
a. Ensure that recruitment practices are nondiscriminatory, avoiding word-of-mouth
dissemination of information about job opportunities when the workforce is
substantially white, or all members of some other class. Avoid giving false or
misleading information to members of any group or to fail or refuse to advise
them of work opportunities. Avoid advertising classifications that specify gender
or age unless it is a bona fide occupational qualification for the job.
b. Avoid asking pre-employment questions about an applicant’s race, color, religion,
sex, or national origin.
c.
Do not deny a job to a disabled individual if the person is qualified and able to
perform the essential functions of the job. Make reasonable accommodations for
candidates that are otherwise qualified but unable to perform an essential
function unless doing so would result in a hardship.
d. Apply tests and performance standard uniformly to all employees and job
candidates. Avoid tests if they disproportionately screen out minorities or women
and are not job related.
e. Do not give preference to relatives of current employees if your current
employees are substantially nonminority.
f.
Do not establish requirements for physical characteristics unless you can show
they are job related.
g. Do not make pre-employment inquiries about a person’s disability, but do ask
questions about the person’s ability to perform specific essential job functions.
h. Review job application forms, interview procedures, and job descriptions for
illegal questions and statements. Check for questions about health, disabilities,
medical histories, or previous workers’ compensation claims.
i.
Do not ask applicants whether they have ever been arrested or spent time in jail.
However, you can ask about conviction records.
j.
Assure that all layoff practices do not violate any federal, state, or local
employment laws. Special emphasis should be placed on the ADEA or Age
Discrimination Employment Act.
2. Explain the Equal Opportunity Commission enforcement process. Equal
employment opportunity aims to ensure that anyone, regardless of race, color, sex,
religion, national origin, or age has an equal chance for a job based on his or her
qualifications. Establishing the EECO greatly enhanced the federal government’s ability
to enforce equal opportunity laws. The EEOC receives and investigates job discrimination
complaints from aggrieved individuals. When it finds reasonable cause that the charges
are justified, it attempts to reach an agreement eliminating all aspects of the
discrimination.
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3. List five strategies for successfully increasing diversity in the workforce.
1. Provide strong leadership in managing diversity programs.
2. Assess the organizational situation as it relates to equal employment hiring.
3. Provide diversity training and education.
4. Change culture and management systems.
5. Evaluate the diversity management program.
4. What is Title VII? What does it state? Title VII of the 1964 Civil Rights Act states an
employer cannot discriminate on the basis of race, religion, sex, or national origin with
respect to employment.
5. What important precedents were set by the Griggs v. Duke Power Company case?
The Albemarle Paper Co. v. Moody case? For the Griggs v. Duke Power Company
case, the case was heard by the Supreme Court in which the plaintiff argued that his
employer’s requirement that coal handlers be highschool graduates was unfairly
discriminatory. In finding for the plaintiff, the Court ruled that discrimination need not be
overt to be illegal, that employment practices must be related to job performance, and
that the burden of proof is on the employer to show that hiring standards are job related.
For the Albemarle Paper Co. v. Moody case, the Supreme Court ruled that the validity of
job tests must be documented and that employee performance standards must be
unambiguous.
6. What is adverse impact? How can it be proven?
This item can be assigned as a Discussion Question in MyManagementLab.
Student responses will vary.
7. Explain the defenses and exceptions to discriminatory practice allegations. The
two main defenses you can use in the event of a discriminatory practice allegation are
bona fide occupational qualification (BFOQ) and business necessity. BFOQ is a
requirement that an employee be of a certain religion, sex, or national origin where that is
reasonably necessary to the organization’s normal operation. Business necessity is a
justification for an otherwise discriminatory employment practice, provided there is an
overriding legitimate business purpose.
8. What is the difference between affirmative action and equal employment
opportunity?
This item can be assigned as a Discussion Question in MyManagementLab.
Student responses will vary.
INDIVIDUAL AND GROUP ACTIVITIES
1. Working individually or in groups, respond to these three scenarios based on what
you learned in this Chapter. Under what conditions (if any) do you think the
following constitutes sexual harassment? (a) A female manager fires a male
employee because he refuses her request for sexual favors. (b) A male manager
refers to female employees as “sweetie” or “baby.” (c) A female employee
overhears two male employees exchanging sexually oriented jokes. In answering
the questions, the students should keep in mind the three main ways sexual harassment
can be proved, as well as the steps the employee should take in alerting management.
2. Working individually or in groups, discuss how you would set up an affirmative
action program. It is important that students reach a decision of whether to use the good
faith effort strategy or the quota strategy. Most experts would suggest the good faith effort
strategy is the most legally acceptable approach. The following list of six actions should
27
be demonstrated in the student plans: increasing the minority or female applicant flow;
demonstrating top management support for the equal opportunity policy; demonstrating
the equal opportunity commitment to the local community; keeping employees informed
about the specifics of the affirmative action program; broadening the work skills of
incumbent employees; and institutionalizing the equal employment policy to encourage
supervisors’ support of it.
3. Compare and contrast the issues presented in recent court rulings on affirmative
action. Working individually or in groups, discuss the current direction of
affirmative action. The basic questions addressed in one landmark case known as
Bakke focused on when preferential treatment becomes discrimination and under what
circumstances discrimination will be temporarily permitted. Neither question was fully
answered. Subsequent cases have continued to address these issues and clarify more
specifically the scope and intent of affirmative action. For example, in the Paradise case,
the court ruled that the courts can impose racial quotas to address the most serious
cases of racial discrimination. In Johnson, the court ruled that public and private
employers may voluntarily adopt hiring and promotion goals to benefit minorities and
women. The Johnson ruling may limit claims of reverse discrimination by white males.
4. Working individually or in groups, write a paper entitled “What the manager should
know about how the EEOC handles a person’s discrimination charge.” The students
should include the following information in their paper. The EEOC can either accept it or
refer it to the state or local agency. After it has been filed, the EEOC has 10 days to serve
notice on the employer, and then investigate the charge to determine whether there is
reasonable cause to believe it is true within 120 days. If charges are dismissed, EEOC
must issue the charging party a Notice of Right to Sue. The person has 90 days to file
suit on his or her own behalf. If EEOC finds reasonable cause for the charge, it must
attempt conciliation. If conciliation is not satisfactory, it can bring a civil suit in federal
district court, or issue a Notice of Right to Sue to the person who filed the charge. Under
Title VII, the EEOC has 30 days to work out a conciliation agreement between the parties
before bringing suit. If the EEOC is unable to obtain an acceptable conciliation
agreement, it may sue the employer in federal district court.
5. Assume you are the manager in a small restaurant; you are responsible for hiring
employees, supervising them, and recommending them for promotion. Working
individually or in groups, compile a list of potentially discriminatory management
practices you should avoid.
Acceptable answers include the following:
Ensure that recruitment practices are nondiscriminatory, avoiding word-of-mouth
dissemination of information about job opportunities when the workforce is
substantially white, or all members of some other class. Avoid giving false or
misleading information to members of any group or to fail or refuse to advise them of
work opportunities. Avoid advertising classifications that specify gender or age unless
it is a bona fide occupational qualification for the job.
Avoid asking pre-employment questions about an applicant’s race, color, religion,
sex, or national origin.
Do not deny a job to a disabled individual if the person is qualified and able to
perform the essential functions of the job. Make reasonable accommodations for
candidates that are otherwise qualified but unable to perform an essential function
unless doing so would result in a hardship.
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Apply tests and performance standard uniformly to all employees and job candidates.
Avoid tests if they disproportionately screen out minorities or women and are not job
related.
Do not give preference to relatives of current employees if your current employees
are substantially nonminority.
Do not establish requirements for physical characteristics unless you can show they
are job related.
Do not make pre-employment inquiries about a person’s disability, but do ask
questions about the person’s ability to perform specific essential job functions.
Review job application forms, interview procedures, and job descriptions for illegal
questions and statements. Check for questions about health, disabilities, medical
histories, or previous workers’ compensation claims.
Do not ask applicants whether they have ever been arrested or spent time in jail.
However, you can ask about conviction records.
6. The HRCI Knowledge Base holds the HR professional responsible to “Ensure that
workforce planning and employment activities are compliant with applicable
federal, state and local laws and regulations.” Individually or in teams, draw up a
matrix that lists (down the side) each law we covered in this chapter, and (across
the top) each HR function (job analysis, recruiting, selection, etc.). Then, within the
matrix, give an example of how each law impacts each HR function. Student
answers will vary but must include a list of the federal laws covered in this chapter and
the chief HR functions. Examples in each cell could be listed numerically to allow enough
space to describe the examples.
APPLICATION EXERCISES
HR in Action Case Incident 1: An Accusation of Sexual Harassment in Pro Sports
1. Do you think Ms. Browne Sanders had the basis for a sexual harassment suit?
Why or why not? Ms. Browne Sanders did have the basis for a valid sexual harassment
suit. In this case, the Garden demonstrated a failure to stop the harassment of Ms.
Sanders.
2. From what you know of this case, do you think the jury arrived at the correct
decision? If not, why not? If so, why? The jury did arrive at the appropriate decision
given the facts that were presented in this case. The Garden had a responsibility to
demonstrate concrete reasons for their termination decision. It does not appear that any
specific reasons were shared with the jury.
3. Based on the few facts that you have, what steps could Garden management have
taken to protect itself from liability in this matter? A number of steps could be taken.
First, the Garden should have conducted a thorough investigation and documented the
results in a written report. Second, the Garden supplied a very generalized response for
the termination. Before terminating an employee for performance, an organization should
demonstrate that a number of actions were taken to coach and counsel the employee
before termination.
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4. Aside from the appeal, what would you do now if you were the Garden’s top
management? The Garden should have a policy/program in place to show how claims of
sexual harassment are addressed including a clause that prohibits and type of retaliation.
5. “The allegations against Madison Square Garden in this case raise ethical
questions with regard to the employer’s actions.” Explain whether you agree or
disagree with this statement, and why. Continuing assessments of what is right and
what is wrong change over time. The changes are sparked by evolution within our
culture, and the changes contribute to further evolution, and more adjustments in the
ways we measure certain kinds of conduct against ethical values. Denying a culture’s
ability to alter its understanding of what is right and wrong is ultimately futile. One area
that has seen ethical evolution is the treatment of women in the workplace. It isn’t
surprising that the standards of appropriate treatment have changed from the time.
HR in Action Case Incident 2: Carter Cleaning Company
1. Is it true, as Jack Carter claims, that “we can’t be accused of being discriminatory
because we hire mostly women and minorities anyway?” This is not true at all.
Employers can be accused of discriminatory practices at any time. In this case, female
applicants were being asked questions about childcare that males were not being asked;
minority applicants were being asked questions about arrest records and credit histories
that non-minorities were not. In addition, the reports of sexual advances toward women
by a store manager and an older employee’s complaint that he is being paid less than
other employees who are younger for performing the same job all raise serious issues in
terms of discriminatory employment practices. Potential charges include violation of Title
VII, the Equal Pay Act, age discrimination, sexual harassment, and disparate treatment.
2. How should Jennifer and her company address the sexual harassment charges
and problems? The first step would be to document the complaint and initiate an
investigation; if the finding of the investigation is that sexual harassment did occur, then
take the appropriate corrective action, which could include disciplinary action including
discharge. In addition, the company should develop a strong policy statement and
conduct training with all managers.
3. How should she and her company address the possible problems of age
discrimination? The company should review the compensation structure and pay rates
to determine whether there is discrimination in their pay system with regard to older
workers being paid less than younger workers for performing the same work. If there are
significant differences, then adjustments should be made to the pay system in order to
rectify the problem.
4. Given the fact that each of its stores has only a handful of employees, is her
company in fact covered by equal rights legislation? Yes—the EEOC enforces equal
employment compliance against all but the very smallest of employers. All employees,
including part-time and temporary workers, are counted for purposes of determining
whether an employer has a sufficient number of employees. State and local laws prohibit
discrimination in most cases where federal legislation does not apply.
5. And finally, aside from the specific problems, what other human resource
management matters (application forms, training, and so on) have to be reviewed
given the need to bring them into compliance with equal rights laws?
The company should do several things:
a. Develop an employee handbook which contains policy statements about equal
employment opportunity, sexual harassment, and so on.
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b. Develop an employment application which is free from discriminatory questions, as
well as a standard interview guide which will ensure consistency of “legal” questions
from candidate to candidate.
c. Conduct supervisory/management training to ensure that all managers are educated
and aware of their responsibilities under EEO laws and regulations.
d. Develop and implement a complaint procedure and establish a management
response system that includes an immediate reaction and investigation by senior
management.
Experiential Exercise: The Interplay of Ethics and Equal Employment
Purpose: The purpose of this exercise is to increase your understanding of how ethics and
equal employment are interrelated.
Required Understanding: Be thoroughly familiar with the material presented in this chapter.
How to Set Up the Exercise/Instructions:
1. Divide the class into groups of three to five students.
2. Each group should use the Internet to identify and access at least five more companies
that emphasize how ethics and equal employment are interrelated.
3. Next, each group should develop answers to the following questions:
a. Based on your Internet research, how much importance do employers seem to place
on emphasizing the ethical aspects of equal employment?
b. What seem to be the main themes these employers emphasize with respect to ethics
and equal employment?
c.
Given what you have learned here, explain how you would emphasize the ethical
aspects of equal employment if you were creating an equal employment training
program for new supervisors.
The responses from the student groups will vary but each student group should identify at
least one or more of the following:



Training supervisors and employees to avoid sexual and other forms of harassment
has always been important, but recent developments have made such training even
more vital.
Recently, the U.S. Supreme Court ruled that employers may escape liability for
punitive damages under Title VII of the Civil Rights Act of 1964 if they can prove that
a supervisor’s discriminatory conduct violated the company’s equal employment
policies. Companies that can prove they provided anti-harassment training to
supervisors will be able to provide compelling evidence that this was the case.
In addition, last year the Supreme Court issued two decisions (Faragher v. City of
Boca Raton, 97-282 and Burlington Industries Inc. v. Ellerth, 97-569) stating that
employers are automatically liable for sexual harassment by their supervisors—
unless a supervisor’s harassment did not result in tangible harm to the employee and
the company can show that:
 It acted reasonably to prevent and correct the harassment.
 The employee acted unreasonably by failing to use internal processes or
otherwise prevent the harm.
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


The Equal Employment Opportunity Commission (EEOC) and federal courts of
appeal have since made clear that these decisions apply to all forms of harassment.
Companies that train supervisors and employees to prevent sexual harassment will
be able to show that they acted reasonably. Further, they will be able to show that
employees were informed of the company’s complaint procedures but failed to use
them.
And, as if all these legal developments weren’t enough, the EEOC recently issued a
guidance that directs employers to provide anti-harassment training.
WEB-e’s EXERCISES
1. Citicorp recently faced a billion dollar discrimination suit. Use Web sites such as
http://www.allbusiness.com/legal/legal-services-litigation/5062526-1.html to
discuss what happened with these suits. The complaint charges that, among other
things, Citicorp/Smith Barney discriminates in the account distribution process, routinely
assigning smaller and less valuable accounts to female brokers, including those who
outperform their male counterparts; provides women with less sales and administrative
support than it provides to men; and maintains a corporate culture hostile to female
professionals. The lawsuit charges that Smith Barney has engaged in a pattern and
practice of gender discrimination against its female financial consultants in account
distribution, sales support, compensation, and other terms and conditions of employment
throughout the company. The women allege violations of federal and state laws, including
Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing
Act.
2. Using sites such as http://www.foxnews.com/story/0,2933,517334,00.html, discuss
the details of the discrimination suit against Hooters. The Complainant filed a
complaint against Hooters of America in January alleging its Corpus Christi franchisee
would not hire him as a waiter because the position was being limited to females by an
employer “who merely wishes to exploit female sexuality as a marketing tool to attract
customers and insure profitability.” Hooters argued a “bona-fide occupational
qualification” defense, which applies when the “essence of the business operation would
be undermined if the business eliminated its discriminatory policy.” The Complainant was
suing on behalf of “all males across the country who applied for the position of waiter at a
Hooters restaurant and were denied,” and suggested all Hooters franchisees be certified
as defendants. The settlement however applies only to the Corpus Christi franchisee.
3. What conclusions can you draw from sites such as
http://www.usatoday.com/news/health/weightloss/2008-05-20-overweightbias_N.htm about handling and avoiding discrimination against obese people?
Weight discrimination, especially against women, is increasing in U.S. society and is
almost as common as racial discrimination, two studies suggest. Reported discrimination
based on weight has increased 66 percent in the past decade, up from about 7 percent to
12 percent of U.S. adults, says one study, in the journal Obesity. The other study, in the
International Journal of Obesity, says such discrimination is common in both institutional
and interpersonal situations—and in some cases is even more prevalent than rates of
discrimination based on gender and race. (About 17 percent of men and 9 percent of
women reported race discrimination.)
ADDITIONAL ASSIGNMENTS
1. What is sexual harassment? How can an employee prove sexual harassment?
Sexual harassment is harassment on the basis of sex that has the purpose or effect of
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substantially interfering with a person’s work performance or creating an intimidating,
hostile, or offensive work environment. An employee can prove sexual harassment in
three main ways: 1) quid pro quo—prove that rejecting a supervisor’s advances
adversely affected tangible benefits; 2) hostile environment created by supervisors; and
3) hostile environment created by coworkers or nonemployees.
2. What is the difference between disparate treatment and disparate impact? The main
difference is one of intent. Disparate treatment means that there was an intent to treat
different groups differently. Disparate impact does not require intent, but merely to show
that an action has a greater adverse effect on one group than another.
3. Explain with examples how the evolution of equal employment law in the 1960s
helps illustrate how public policy considerations drove the original EEO
legislation. The Civil Rights Act of 1964 was a landmark piece of legislation in the United
States that outlawed major forms of discrimination against blacks and women, and ended
racial segregation in the United States. It ended unequal application of voter registration
requirements and racial segregation in schools, at the workplace, and by facilities that
served the general public (“public accommodations”). Once the Act was implemented, its
effects were far-reaching on the country as a whole and had an immediate impact on the
South. It prohibited discrimination in public facilities, in government, and in employment,
invalidating the Jim Crow laws in the Southern United States. It became illegal to compel
segregation of the races in schools, housing, or hiring. After passage of the law, the
NAACP was the only major civil rights organization to maintain a large membership in the
South, where it concentrated on organizing the ongoing struggle for black civil rights.
During 1965–1975, the NAACP remained committed to using litigation to challenge racial
injustice. Its legal efforts focused on four areas: enforcement of both the 1964 Civil Rights
Act and the 1965 Voting Rights Act, school integration, employment discrimination, and
the struggle to keep Southern states and localities from switching to at-large elections.
4. Give at least three examples of how current EEOC policy reflects public policy
decisions. Embarking on an historic new area of jurisdiction, the U.S. Equal Employment
Opportunity Commission (EEOC) recently presented a Notice of Proposed Rule Making
implementing employment provisions of the Genetic Information Non-Discrimination Act
of 2008. In addition, the EEOC has passed legislation in the areas of privacy for
employees as well as employer and employee rights as it relates to electronic monitoring
in the workplace.